PLD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00052345 (CA-00064044-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 5 November 2024, in accordance with Section 27 of the Paternity Leave and Benefit Act 2016. A Labour Court hearing took place on 7 February 2025. The following is the Decision of the Court.

DECISION:

This is an appeal by Securitas against the decision of an Adjudication Officer in relation to a complaint taken by Lukasz Nowak under the Parental Leave Act, 1998 (the Act).

The complaint to the Workplace Relations Commission was made on 11 June 2024. The Adjudication Officer held that the claim was well-founded and directed Securitas to pay €2,500 in compensation.

In this decision the parties are referred to as they were at first instance. Hence, Securitas is referred to as “the Respondent” and Lukasz Nowak as “the Complainant”. 

Summary Position of the Complainant

The Complainant submits that he was entitled to avail of three days force majeure leave on 29, 30 and 31 May 2024.

On 25 May 2024, the Complainant’s wife underwent emergency surgery following the birth of their child. She was left incapacitated and had to undergo further treatment as she was at high risk for sepsis. His wife was discharged from hospital on 27 May 2024. The Complainant was advised of signs to watch for in case she went into septic shock or started haemorrhaging. He was also advised that she required additional care and monitoring due to her low iron levels.

The Complainant contacted his employer to advise that he was unable to work his scheduled night shifts (from 29 May to 1 June 2024) as his wife would require a higher level of care than anticipated on her discharge from hospital. When the Complainant requested force majeure leave for this absence, he was advised that he was not entitled to such leave and could take annual leave, if he wished.

The Complainant’s wife needed greater care at home than anticipated. She was referred to hospital by the public health nurse on 28 May 2024 with a suspected spinal fluid leak and underwent various tests. The Complainant tried to contact his manager that day to update him of the situation and to again request force majeure leave. He did not hear back until after 5pm, at which point they still awaited test results. Again, he was advised that he did not qualify for force majeure leave but could take annual leave.

His wife was discharged into the Complainant’s care. She had a spinal fluid leak, and the Complainant was given instructions to monitor her progress. As she was very unwell and had a newborn baby and a 7-year-old to look after, the Complainant could not leave them alone overnight. There was nobody suitable to care for them on his behalf

The Complainant engaged with his manager, and was told that he could take unpaid medical care leave, if he wished. As the Complainant was unable to attend work, he informed his manager that he would take annual leave and seek redress as they were at an impasse about his entitlement to force majeure leave.

The Complainant submits that he acted reasonably and responsibly by giving his employer as much notice as possible. His wife’s mobility was severely impacted because of the issues she suffered post-delivery, and she required great assistance in caring for herself. She had to have the newborn lifted to her to be fed. He could not leave her alone overnight in the condition she was in and there was no other suitable person to provide the care she required at the time. The Respondent demonstrated a complete lack of empathy during what was an incredibly challenging time for the Complainant and his family.  Due to ongoing animosity towards him, he reluctantly resigned his position.

Summary Position of the Respondent

The Complainant’s request did not meet the definition of force majeure leave within the meaning of Section 13 of the Act. The Respondent acted reasonably and lawfully in not accepting the request.

On Monday 27 May 2024, the Complainant requested three days force majeure Leave to cover the period from 29 May to 31 May 2024 when he was rostered to work night shifts. The request was made in advance to his line manager, via phone.

The Complainant advised that he was unable to attend work as his wife had encountered medical issues requiring surgery and needed someone to be at home with her when discharged. He argued that his presence at home was immediate and indispensable. The Complainant was told a request to take leave in advance did not fall within the meaning of force majeure Leave, but alternative leave was available.

On Tuesday 28 May 2024, the Complainant made a further request for force majeure Leave.  He was again advised that his situation did not qualify for force majeure Leave, however, he could avail of leave for medical care purposes. By reply, the Complainant advised that he intended to take annual leave and seek redress in the Workplace Relations Commission.

The Respondent sympathises fully with the Complainant and the difficult circumstances encountered by his wife during the birth of their child. Force majeure Leave is not a substitute for childcare arrangements. Force majeure Leave, by definition, relates to illnesses/injuries with a sudden and immediate onset which cannot be foreseen The leave was sought two days in advance when the Complainant’s wife was in Hospital awaiting discharge. At the time of the request there was no urgency, no immediacy and the Respondent was not required at work for another two days.

The illness was foreseeable, was known in advance of the requirement and therefore was not unforeseen. As the request came two days in advance of when leave was required it was missing the immediacy requirement under the Act. As such, it did not constitute “urgent family reasons”.  If advance notice before the urgency arises is acceptable under the Act, which is denied, it will have a monumental impact on employers within the State.

The Complainant failed to comply with the notice requirements of s.3 and SI 454 of 1998. The Respondent did not receive a notice in the prescribed manner. The Respondent referred the Court to the case of Penn-Plax and Emer Moran no. PLD201, where the Labour Court stated:

“…the Appellant’s ignorance of the law cannot provide an excuse for her failure to notify the Respondent, in accordance with the Act at Section 13(3) of leave on grounds of force majeure or her failure to use the statutorily prescribed form or a form to the like effect containing the information and declaration referred to in the statement (S.I No. 454 / 1998).”

Finally, force majeure leave is to protect the requestor as a matter of law, in a situation whereby he or she is unable to meet his or her contractual obligations as an employee under employment laws. At the time of the request, the Complainant was not regarded as being in the employment of the employer.

Relevant Law

Leave on grounds of force majeure.

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

(2) The persons referred to in subsection (1) are—

…

…(b) the spouse of the employee or a person with whom the employee is living as husband or wife,

…

(3) When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.

(4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.

Deliberations and Conclusions

The Respondent contends that as the Complainant was not rostered to work on the dates that he requested force majeure leave, he cannot be regarded as being in the employment of the employer.  Notwithstanding that contention, the Respondent in its submission outlined that the Complainant commenced employment with the Respondent as a security officer in 2018. No submission was made to Court to say that the Complainant was not employed by the Respondent under a contract of employment at the relevant time, nor were any preliminary matters raised with the Court regarding its jurisdiction to hear the within complaint.

The Court finds that there is no basis to the assertion that the Complainant was not employed by the Respondent at the relevant time.

The Complainant contends that he was entitled to avail of three days force majeure leave on 29, 30 and 31 May 2024.

An entitlement to leave on the ground of force majeure arises where the reasons for the leave are urgent and the immediate presence of the employee at the place where the injured or ill family member is indispensable. The Act can only have application on a day when all the circumstances set out in the Act at Section 13(1) are present.

As a result, the Court must consider whether the Complainant’s absence from work on 29, 30 and 31 May 2024 were for an ongoing urgent family reason, where his immediate presence was indispensable due to the illness of a family member.  The Court must also consider if the Complainant complied with the notice provision set out s.13(3) of the Act.

The Court did not hear sworn testimony in this case.  The Respondent does not take issue with the facts as submitted the Complainant. It is accepted that the Complainant’s spouse suffered complications following the birth of their child and underwent emergency surgery. The Respondent did not take issue with the fact that the Complainant’s spouse was incapacitated and required a higher level of care than anticipated on her discharge from hospital. It submits that it was willing to assist by providing the Complainant with any alternative leave arrangements.

The Court heard that the Complainant made three separate requests for force majeure leave.

The first request was made on Monday 27 May 2024, when the Complainant spoke with his line manager by phone to request force majeure leave for the three-day period from 29 May to 31 May 2024, inclusive. That request was declined on the basis that his presence with his wife was not immediate and indispensable at that point in time.

On the facts as presented, the Court finds that at the time that the application was made the illness experienced by the Complainant’s wife was clearly unforeseen, as she was required to undergo emergency surgery following the birth of their child. An emergency operation is by its nature an unforeseen event. The Complainant acted reasonably by contacting his line manger to appraise him of the situation and to forewarn him that he would be unable to attend work later that week.

However, the Complainant was not due on duty for a further two days and in those circumstances, the Court finds that it was not unreasonable for the Respondent to decline the request for force majeure leave made at that time on the basis that it was not clear whether the Complainant’s immediate presence to care for his wife would be necessary two days later when he was due back at work.

The second request for force majeure leave was made on the evening of Monday 27 May 2024. 

The Complainant emailed his line manager at 23:28 setting out the details of his wife’s medical condition and stating:-

“…I will not be in a position to attend work on the dates previously discussed for the reasons provided above, that being my indispensable presence required at home at this time and that this has come about today likely lasting over a week and impacting these shifts.

I would request again these dates be granted as force majeure leave.  Should you require a specific form to be completed for this I am to complete same once provided”.

The following day the Complainant attempted to contact his manager via WhatsApp 11:42, 11:43 and again at 12:38.  His line manager sent a message in reply at 13:42 as follows:

“Hi Lukasz, apologies I missed your call, I am in meetings this afternoon.  I contacted our legal department for guidance on force majeure leave, I will respond to your email as soon as I hear back from them”.

Later that afternoon at 16:50, the line manager replied to the Complainant’s email of the previous evening to confirm that his leave request did not fall within the parameters of force majeure leave and that he could avail of unpaid leave for medical care or paid annual leave, if he wished.

On the facts as presented, the Court finds that it was not unreasonable for the Respondent to respond to this second request for force majeure leave as it did, as based on the information available to it at that time nothing had changed. It was still not clear whether the Complainant’s immediate presence to care for his wife would be necessary when he was due back at work the following day, Thursday 29 May 2024.

However, when declining that second request the Respondent was not aware that circumstances had changed, and that the Complainant’s wife had been readmitted back to hospital and was undergoing further tests.

After his wife was readmitted back to hospital, the Complainant tried again to contact his line manager by phone to update him about the situation and make a further request for force majeure leave. He also sent him an email at 17:00 in which he (i) reiterated his position that he was entitled to force majeure leave, (ii) confirmed that he would take the time off as annual seek and (iii) stated that he would refer the matter to the Workplace Relations Commission (WRC).

The Court heard that the Complainant and his line manager subsequently spoke by phone after 17:00. At that point the Complainant’s wife was still in hospital awaiting test results. The Complainant explained the situation and again requested force majeure leave. The request was again declined. The Court is of the view that the Respondent made a pre-emptive judgment in declining the third request made by Complainant for force majeure leave.

The Respondent contends that the request for force majeure leave did not meet the definition set out under the Act, as the circumstances giving rise to it could not be regarded as an unforeseen event. The Court had some difficulty with that contention as it related to the third request for leave made during the phone call on 28 May 2024. At that point the circumstances that had given rise to the initial request for force majeure leave had changed. The ongoing medical situation was still evolving, as the Complainant’s wife had been readmitted to hospital and awaited further test results.

The concept of force majeure refers to unforeseeable set of circumstances outside the control of the parties and the consequences of which could not have been avoided. In the Court’s view, the readmission of the Complainant’s wife back to hospital with a suspected spinal leak was not a foreseeable event. 

The Court heard that the Complainant’s wife was due to be discharged from hospital and would need additional care. The Complainant contends that at that point, without other family support, his immediate presence was required to provide her with that care, as no alternative care was available. 

On the facts as presented, the Court is satisfied that the Complainant fulfils the criteria set out at s.13(1) of the Act, as an urgent family reason arose on 28 May 2024 that resulted in his wife’s readmission to hospital. The Complainant’s presence was required to care for his ill wife on her discharge from hospital that evening and, in circumstances where he did not have other family support available and he could not arrange alternative care for her, his immediate presence with her on 29 May 2024 was indispensable.

Having regard to the oral and written submissions made the Court is satisfied that on 29 May 2024, due to urgent family reasons, the Complainant’s immediate presence was required with his wife on her release from hospital due to her ongoing medical situation. and that his presence was indispensable. 

When considering a complaint about a contravention of the Act the Court must consider if the Complainant complied with the notice provision set out at s.13(3) of the Act which requires an employee to complete a form, designated for such purposes, as soon as is reasonably practicable, that sets out details of when the force majeure leave was taken and why it constitutes force majeure leave. 

The Court notes that the Complainant notified the Respondent by email on 27 May 2024 that he would complete any specific paperwork required “once provided”.  No such form was provided to him by the Respondent. The Court heard that, in reply to that request, the Complainant was advised that he was not entitled to avail of force majeure leave. In the Court’s view, the Complainant cannot be penalised for failing to complete a prescribed form in circumstances where he requested a copy of such a form, and none was provided to him.  In any event, the Complainant in this case did not “take” force majeure leave on 29 May 2024, as that request was denied. He took annual leave instead and advised he employer that he would progress a complaint to the WRC that his right to force majeure leave was denied.  

Having regard to all of circumstance of this case, the Court finds that the Complainant fulfils the criteria set out at s.13(1) of the Act and, for the reasons set out above, finds the Complainant was entitled to force majeure leave on 29 May 2024. The Court finds that the Respondent contravened the Act when it denied the Complainant his entitlement to force majeure leave on 29 May 2024. Accordingly, the Court finds that that element of the within complaint is well founded.

The Complainant contends that he was also entitled to avail to force majeure leave on 30 and 31 May 2024.

The Act can only have application on a day when all of the circumstances set out in the Act at Section 13(1) are present. While the Complainant’s presence was required to care for his ill wife on her immediate release from hospital, the Court does not find that the urgency of the situation persisted thereafter such that he was entitled to avail of force majeure leave on 30 and 31 May 2024. 

While providing or arranging care for his wife may have proved difficult for the Complainant on 30 and 31 May 2024, the Court finds that the circumstances that arose on those dates was foreseen. The urgency of the situation had dissipated and could not be considered as “urgent” as were the circumstance that arose on 29 May 2024, when the Complaint was not able to make alternative arrangements for the care of his wife.

Having regard to the above, the Court finds that the Complainant was not entitled to force majeure leave on 30 and 31 May 2024.

Redress

The Act provides at s.21(2) as follows:

“(2) An award of compensation referred to in subsection (1) (b) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

The Act entitles parents to avail of up to 26 weeks of unpaid parental leave. The Act further provides for limited paid force majeure leave to enable employees deal with family emergencies resulting from injury or illness of a family member, up to a maximum of three days in any twelve consecutive months or five days in any thirty-six consecutive months.

The complaint before the Court relates solely to the Complainant’s entitlement to force majeure leave.

In this case the Complainant has determined that the Complainant was entitled to one days force majeure leave on 29 May 2024.

Having regard to the oral and written submissions made the Court and taking account of all of the circumstances of this case, the Court deems that an award of €2,500 is just and equitable.

Decision

The Court directs that the Respondent pay the sum of €2500 as just and equitable in compensation to the Complainant.

The Complaint is well founded. The decision of the Adjudication officer is varied accordingly.

The Court so decides

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
4th April 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.